Citation Nr: 0704030
Decision Date: 02/08/07 Archive Date: 02/22/07
DOCKET NO. 04-21 051 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to service connection for a chronic obstructive
pulmonary disease (COPD), to include as secondary to service-
connected, inactive pulmonary tuberculosis.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M. Scott Walker, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1959 to November
1960.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an October 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Louis, MO.
The issue on appeal is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
REMAND
The Board finds that prior to the adjudication of the issue
on appeal, additional development is needed.
The veteran was issued a letter in compliance with the
Veterans Claims Assistance Act of 2000 (VCAA) as to the issue
of direct service connection for COPD. However, with respect
to the issue of secondary service connection for COPD, VA has
failed to meet the requirements set forth in the VCAA. See
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126;
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; Quartuccio v.
Principi, 16 Vet. App. 183, 187 (2002). Because the VCAA
letter did not include secondary service connection, the
claimant was not aware that it was ultimately the claimant's
responsibility to give VA any evidence pertaining to that
specific claim. See Pelegrini v. Principi, 18 Vet. App. 112,
120-21 (2004) (Pelegrini II). The veteran should be issued a
VCAA letter which pertains to secondary service connection
which complies with Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006).
The veteran has asserted that she has COPD as secondary to
her service-connected pulmonary tuberculosis. Secondary
service connection may be granted for a disability that is
proximately due to, or the result of, a service-connected
disease or injury. 38 C.F.R. § 3.310(a) (2006). With
regard to the matter of establishing service connection for a
disability on a secondary basis, the United States Court of
Appeals for Veterans Claims (Court) has held that there must
be evidence sufficient to show that a current disability
exists and that the current disability was either caused by
or aggravated by a service-connected disability. Allen v.
Brown, 7 Vet. App. 439, 448 (1995) (en banc). Additionally,
when aggravation of a nonservice-connected disability is
proximately due to or the result of a service-connected
condition, such disability shall be compensated for the
degree of disability (but only that degree) over and above
the degree of disability existing prior to the aggravation.
Id.; see also 71 Fed. Reg. 52744-52747 (Sept. 7, 2006).
The record reflects that the veteran has been diagnosed with
COPD by VA. A VA outpatient report from April of 2001 states
that the veteran has "a history of severe COPD."
VA outpatient records from May of 2000 reveal that the
veteran was smoking a pack of cigarettes per day at that
time, and that she had been a smoker for 39 years. Moreover,
following a September 2002 VA examination, the examiner
noted, "It is in my professional medical opinion that this
veteran's chronic obstructive pulmonary disease is caused
from her extensive smoking history and not from her inactive
tuberculosis."
However, the veteran specifically asserts that her pulmonary
tuberculosis aggravates her COPD. The examiner did not
address whether pulmonary tuberculosis aggravates the COPD.
In light of the foregoing, a VA opinion should be obtained
with regard to the question of aggravation. The examiner who
conducted the September 2002 examination should be asked to
provide an opinion. If she is unavailable, the veteran
should be afforded another examination and the VA examiner
who conducts that examination should provide an opinion. VA
is obligated to make reasonable efforts to assist a claimant
in obtaining evidence necessary to substantiate her claim.
38 U.S.C.A. § 5103A (West 2002 & Supp. 2005). VA's duty to
assist includes providing a medical examination and/or
obtaining a medical opinion when such an examination becomes
necessary to substantiate the claim. 38 U.S.C.A. § 5103A(d)
(West 2002 & Supp. 2005). In this case, a VA medical opinion
that addresses the question of secondary service connection
based on aggravation is necessary.
Accordingly, this matter is REMANDED for the following
actions:
1. The AMC should review the record and
ensure compliance with all notice and
assistance requirements set forth in the
VCAA and subsequent interpretive
authority, as pertains to the issue of
secondary service connection for COPD.
See, e.g., Pelegrini v. Principi, 18 Vet.
App. 112 (2004); VAOPGCPREC 7-2004 (July
16, 2004); Mayfield v. Nicholson, 19 Vet.
App. 103 (2005), rev'd on other grounds,
Mayfield v. Nicholson, 444 F.3d 1328
(Fed. Cir. 2006); Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006). A
notice consistent with 38 U.S.C.
§ 5103(a) and 38 C.F.R. § 3.159(b)(1)
must:
(1) inform the claimant about the
information and evidence not of record
that is necessary to substantiate the
claim;
(2) inform the claimant about the
information and evidence that VA will
seek to provide;
(3) inform the claimant about the
information and evidence the claimant is
expected to provide; and
(4) request that the claimant provide any
evidence in the claimant's possession
that pertains to the claim.
2. Contact the examiner who conducted
the September 2002 examination to provide
an opinion regarding the questions below.
If she is unavailable, schedule the
veteran for a VA examination. The claims
file must be made available to the
examiner and the examiner should indicate
in his/her report whether or not the
claims file was reviewed. Any indicated
tests, including X-rays if indicated,
should be accomplished.
Based on a review of the claims file and
any examination findings, the examiner
should state the medical probabilities
(less likely than not; at least as likely
as not; or more likely than not) that the
veteran's COPD is proximately due to, or
the result of, her inactive, service-
connected tuberculosis. The examiner
should also opine as to the medical
probabilities (less likely than not; at
least as likely as not; or more likely
than not) that her COPD is permanently
aggravated by the veteran's service-
connected tuberculosis. The examiner
should note that aggravation is defined
for legal purposes as a worsening of the
underlying condition versus a temporary
flare-up of symptoms. If aggravation is
found, the examiner should attempt to
quantify the degree of additional
disability resulting from the
aggravation. The examiner should provide
a complete rationale for all opinions
expressed and conclusions reached.
3. The AMC should then readjudicate the
claim on appeal in light of all of the
evidence of record. If the issue remains
denied, the veteran should be provided
with a supplemental statement of the case
as to any issue remaining on appeal, and
afforded a reasonable period of time
within which to respond thereto.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The appellant has the right
to submit additional evidence and argument on the matter or
matters the Board has remanded. Kutscherousky v. West, 12
Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
______________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2006).